Smoot v. Judd

¶1DISSENTING OPINION.

¶2In this suit the plaintiff invokes the jurisdiction of a court of equity to grant her relief from a judgment rendered against her in a court of law on the ground that she had a good and lawful defensé to the action as was well known to the plaintiff in that action, but -was afforded no opportunity to make *587that defense because, although the sheriff had returned the writ as personally served on her, yet the return was false, afid that she had no notice of the suit until after the adjournment of the term of the court at which the judgment was rendered. She alleges in her petition that under execution on that judgment her undivided interest in certain land was sold and bought by the plaintiff in execution, that he thereupon instituted a suit for partition against the owners of the other undivided interests, which suit resulted in a decree under which there was a sale of the land by the sheriff at which the defendants Brand and Jackson became the purchasers, each of a separate part, and that these two defendants bought with full knowledge of the plaintiff’s claim.

¶3When this cause was here on the former appeal this court said: “There are numerous decisions in this State in which it is held that the sheriff’s return on the writ is conclusive as between the parties to the suit. [Heath v. Eailrbad, 83 Mo. 617; Decker v. Armstrong, 87 Mo. 316; State ex rel. v. Finn, 100' Mo. 429.] But that well-established principle of law has no application in a suit in equity to set aside the judgment founded on the return on the equitable ground of fraud, accident or mistake. ... It has frequently been held in other States that a judgment by default rendered on a false return will be set aside or its execution enjoined in a court of equity. [Citing authorities.] Indeed, it would be so contrary to right and justice to allow a judgment obtained by such means to stand that it is strange there could be any question of the power and duty of a court of conscience in the premises. The Constitution of Missouri ordains that ‘no person shall be deprived of life, liberty or property without due process of law.’ A more flagrant violation of this constitutional provision cannot be conceived than to take one’s property by means of a false return of the process. But the root of equity *588jurisdiction in such a case is planted deeper than in-, even a written Constitution; it is planted, in that enlightened sense of right and justice that lies at the-foundation of all our laws and finds its chief expression in a court of equity.” . [Smoot v. Judd, 161 Mo. 673.]

¶4But in the majority opinion on this second appeal the court takes back what we then said, and now says, that not only can the judgment not be attacked collaterally by showing that the sheriff’s return was false, but also that however flagrant the wrong and injustice-may be, there is no power in a court of equity to afford, the injured party any relief — his only comfort must, be found in a suit on the sheriff’s bond. And if it should so happen that that bond is insolvent, or if' (as the evidence in the case at bar seems to show was the fate of this plaintiff in her vain endeavor to obtain, satisfaction in that mode) the plaintiff’s cry to a court of law for justice should be answered with the mockery of a verdict for one cent damages, still a court of equity must confess its inability to restore-the plaintiff her property of which she was thus deprived, although it is yet in the hands of men who took it with full knowledge that it was taken from her on a judgment predicated on a false return, on a cause of' action against which she had a valid legal defense, but which she had no opportunity to interpose. In my opinion this is the first court in the land to lay down such a doctrine.

¶5No one will go further than the writer of this opinion in upholding the integrity of judicial proceedings.. We must- recognize that the forms of our law and procedure are human and therefore not perfect, that the • best we can do is to lay down certain general principles and prescribe certain general procedure and. that in their application and use we sometimes fall short of doing complete justice, but that it is better for - the general weal to adhere to those principles and. *589forms of procedure than to attempt to make a law for ■each case as it arises. Therefore, we say that the record of a court of general jurisdiction imports absolute ' verity in all its parts, including the sheriff’s return on the original process, which is a part of the record. If •a judgment in such a court is rendered on a return of due service of the summons, and execution issues, and property of defendant is sold thereunder to an innocent third party, or if sold to the plaintiff in execution and by him conveyed to an innocent purchaser for value, the policy of our law'demands that a title so acquired shall be upheld, even though the return was false and the defendant had no notice of the suit. The injury in that case done is the result of our law being less than perfect, and the only redress we can offer the injured one is a suit on the sheriff’s bond, which may or may not result in any satisfaction. But where the defendant’s property is yet in the hands of one who acquired it with knowledge that the judgment was obtained by a false return, it is no impairment of the integrity of the-judicial proceeding to require him, after the truth has been duly ascertained in a court of equity, to restore the property to its rightful owner.

¶6One who comes into a court of equity asking relief must show not only that his technical legal rights have been violated, but' he must show that right and justice .are on his side, and his case' must be such as to arouse the conscience of the chancellor in his favor.

¶7Therefore, even if he should come saying that a money judgment had been rendered against him on a false return and that he had no notice of the suit until the term had passed, if he had nothing more to plead, the chancellor would turn him, away, because he omits to say that he did not owe the debt or any part of it and omits to offer to pay what, if any, he justly owes. In such case, even if it appeared .that the false return had been induced by the fraud of the plaintiff, there are some authorities which question the right to équit*590able relief against tbe judgment unless it should also be made to appear that the defendant had a meritorious defense, or unless he offered to -pay what he owed. Courts of equity do not sit to correct irregularities in legal proceedings, or give relief when no equity demands it. In such case the party is left to his remedy, if any, at law.

¶8The jurisdiction of a court of equity to grant relief against a judgment at Jaw obtained on a false return, in no respect impairs the rule that the sheriff’s return is conclusive as between the parties to the suit and their’ privies and in no respect endangers the rights of innocent third parties bottomed on the judgment.

¶9The sheriff’s return is a part of the record, as much so as the judgment of the court itself, and is as impervious to attack as the judgment, and while it . stands no one will be heard to say that it is not true in fact, except in a suit against the sheriff or on his bond, which right of action the statute gives. We frequently meet, in discussions of the sheriff’s return, expressions to the .effect that its truth can be disputed only in an action against the sheriff for a false return, but those expressions are in reference to the effect to be given the return as it affects the validity of the judgment while it stands in law; they are not found in discussions of the question of equity jurisdiction in such case.

¶10In suits in equity to set aside judgments alleged to have been obtained by fraud we have often said to authorize such a decree it must appear that there was fraud in the very act of obtaining the judgment, as distinguished from fraud in the cause of action on which the judgment was founded. Even though it be alleged that the judgment was obtained by the fraudulent procurement of perjured testimony that alone will not justify a' court of equity in interposing its authority, for the reason that the truth or falsity of the evidence was one of the questions for the jury or court which *591tried the ease to consider, and its verdict is not subiect to review in a court of equity.

¶11But whilst it is true that when a judgment is attacked for fraud in a court of equity, the court will consider only the fraud that is shown in the concoction or obtaining of the judgment, yet fraud is not the only ground on which a court of equity has jurisdiction to set aside a judgment or enjoin its execution.

¶12One of the most illustrious expounders of equity jurisprudence that has ever written on the subject thus states the rule: “In regard to injunctions after a judgment at law it may be stated as a general principle that any facts which prove it to be against conscience to execute such judgment, and of which the injured party could not have availed -himself in a court of law, or of which he might have availed himself at law, but was prevented by fraud or accident, unmixed with any fault or negligence in himself or his agents, will authorize a court of equity to interfere by injunction, to restrain the adverse party from availing himself of such judgment.” [2 Story, Eq. Jur. (13 Ed.), sec. 887.] The same is said substantially in Pomeroy, Eq. Jur., sec. 1364.-,

¶13The law is thus stated in 2 Freeman on Judgments (4 Ed.), see. 495: “A judgment pronounced without service of process, actual or constructive, and without the defendant’s knowledge that a court had been asked to adjudicate upon his rights, is regarded with such disfavor at law that a variety of motions, writs and proceedings are there provided to overthrow it; and in many courts it is at all times and upon all occasions liable to be entirely disregarded upon having its jurisdictional infirmity exposed. But proceedings in equity are peculiarly appropriate for the exposure of this infirmity. They permit of the formation of issues upon the question of service of process, and of the trial of those issues, after full opportunity has been given to-those who seek to sustain as well as to those who seek' *592to avoid the judgment. If at such trial it satisfactorily ■appears that the defendant was not summoned, and had no notice of the suit, a sufficient excuse is shown for his neglect to defend, and equity will not allow the judgment, if unjust, to be used against him, no matter what .jurisdictional recitals it contains. . . . The only ■cases in which there can be any reasonable doubt about granting relief in equity for want of jurisdiction are those in which such want either appears on the face •of the record or may at all times be shown in any and •every collateral proceeding. In such cases there are •courts in which the remedy at law is deemed adequate, and relief in equity is denied for that reason. ’ ’

¶14The law-writer, then turning to the argument that a suit on the sheriff’s bond is the remedy supplied by law, in the same section says: “But the obvious and ■conclusive answer to this line of argument is thus briefly stated in the opinion of the Supreme Court of 'Tennessee: ‘ The action for a false return is an inadequate remedy for such an injury; for it might be that after a ruinous, sacrifice suffered in the payment of a .judgment so recovered, and the delay and expense of litigation with the officer who made the false return, he might be unable to make the proper indemnity or succeed in evading his liability.’ ” [Citing Ridgeway v. Bank, 11 Humph. 523.]

¶15But what better illustration could be given of the Inadequacy of this remedy than is afforded by the facts of the case at bar? In this case, if the plaintiff’s story is true, her land has been taken and sold to satisfy a debt for which she was under no legal liability by means of a judgment rendered against her on a false return and when she sues the sheriff and proves her case, the court turns her off with a judgment for •one cent damages. Is it possible that a court of conscience could listen with patience to the plea that the law afforded her an adequate remedy?

¶16In 1 Black on Judgments,(2 Ed.), section 377, the *593.law is thus stated: • “Equity may vacate or enjoin the judgment of a court of law, when it is shown to be unjust and that the court rendering it, never had jurisdiction of the person of the defendant, although assuming it, in consequence of a false return of service of the sheriff or other officer. ... It should be remarked that there is a line of decisions wherein the application of the rule above stated is materially restricted. These cases hold that equity should not grant relief unless the false return of service was procured or induced by the plaintiff, or unless the latter can be in some way connected with the deception, thus linking the case supposed with the category of those wherein the defendant was prevented from setting up his defense by the trickery or fraud of his adversary. The analogy here presented is plausible, but deceptive. Fortin case the plaintiff is in no fault, and the officer is alone to blame' for the false return, these decisions can suggest no remedy except that the defendant should pay the judgment and then bring his action against the officer. Practically, however, this remedy must often be illusory. And at its best, it involves a circuity and remoteness of obtaining redress which is foreign to the spirit of equity. But although the main rule for cases of this sort may be regarded as generally well settled, there is a material difference of opinion as to whether the relief will be granted when there still exists a complete and adequate remedy in the original suit. Numerous respectable authorities hold that it should be granted; others, that it should be refused. But at all events, before equity will interpose by injunction in a case of this description, it must be averred and proved that the defendant has a meritorious defense, or at least something more than the mere barren right of being permitted to defend.”

¶17In a note the author cites a large number of cases sustaining the text that equity has jurisdiction in such *594cases, from Pennsylvania, California, Alabama, Mississippi, Tennessee, Arkansas, Illinois, Iowa, Wisconsin, Rhode Island, Kentucky, and Colorado, some of which' I will hereinafter refer to.

¶18In 16 Am. and- Eng. Ency. of Law (2 Ed.), 388, it is said: “The weight of authority seems to be that if the process is returned executed upon the defendant at law, and was not in fact executed, and judgment was rendered without'appearance or opportunity to defend, chancery has power to enjoin the judgment, if it be alleged and proved that the party aggrieved has a good defense to the action.” In support of the text the author cites cases from the States above-named and also Kansas, Montana and Nebraska.

¶19High on Injunctions (3 Ed.), vol. 1, sec. 222, says: “Where judgment has been rendered against defendant without notice and without appearance or defense on his part, the sheriff having made a false return of service, equity will relieve against the judgment on the ground that the circumstance's rendering it void are extrinsic to the judgment, and a court of law is, therefore, powerless to arrest its execution.”

¶20If there is any text-writer on this subject who has written to the contrary of the rule of equity jurisdiction above stated the book has not come to my notice. And whilst the law-writers above named say that there are decision's looking to the contrary, yet so far as such eases referred to have come within the reach of the writer of this opinion not one of them goes so far as to hold that equity has no jurisdiction to grant relief against a judgment obtained on a false return when besides the false return the plaintiff showed that he had a meritorious defense to the suit, no intervening-equities of innocent third parties appearing.

¶21Let us now turn to the decisions which are thought to sustain the proposition that a court of equity has no power to relieve a person against an unjust judgment obtained on a false return. In those decisions we shall *595find words to that effect, but the meaning of those words must be bounded by the facts of the ease to which they were applied.

¶22The Supreme Court of the United States is in the list of the courts referred to -as so holding and that court is so classed by reason of its decisions in Walker v. Robbins, 14 How. (55 U. S.) 584, and Knox County v. Harshman, 133 U. S. 152.

¶23In Walker v. Robbins the court said: “In cases of false returns affecting the defendant, where the plaintiff at law is not in default, redress can only be had in the court of law where the record was made, and if. relief can not be had there, the party injured must seek his remedy against the marshal.”

¶24In that case there were three defendants in the suit at law, which was a suit on a bond; the marshal’s return showed personal service on all three; one of the defendants employed a lawyer to defend for all; after that employment the one who afterwards claimed to have not been served, conferred, in company with his codefendant who had -engaged the lawyer, with that lawyer about the character of the defense to be. made; the lawyer filed a joint plea for all the defendants and the suit was defended on the line of defense agreed upon in that conference; ten years after the judgment had been rendered the three defendants jointly filed a bill in equity to enjoin execution o'f the judgment on the ground that one of them had in fact not been served. The court said, “We are of the opinion, however, that the return was not false; but if it was, that Walker waived the want of notice by pleading to the action.” What room was there under the facts of that case for the discussion of the question of equity jurisdiction with which we are now concerned?

¶25In Knox County v. Harshman, the county of Knox filed a bill to enjoin Harshman from prosecuting a writ . of mandamus to enforcé a judgment he had obtained against the county on certain bonds; the bill proceeded *596. on two grounds, first,-that the allegations in the petition on which the judgment was founded were false, as to which the court said: “This ground is fully met and disposed of by the opinion delivered by Mr. Justice Matthews in Harshman v. Ilnox County, 122 U. S.' 306. ’ ’ The other ground relied on was that the county had no notice of the suit because the writ was not served on the county clerk; second, the county clerk neglected to notify the judges of the county court that the writ had been served on him. The court said that those were “hardly consistent suppositions.” The court . then said that if the returns were false the petitioner’s redress could only be sought at law, and referred to Walker v. Robbins, supra; then the court said: “But if'the question of the truth of the return could be considered in this suit, the proofs given at the hearing clearly show that such service was in fact made. Any neglect of the clerk in communicating the fact to the county court was neglect of an agent of the county and did not affect the validity of the service or of the judgment. ’ ’

¶26Hunter v. Stoheburner, 92 Ill. 75, was a suit in equity to set aside a judgment in partition under which land in which plaintiff had an undivided interest had been sold. The partition suit was begun in 1851, when plaintiff was a minor;.the sheriff’s return showed that the minor had been duly served, a guardian ad litem had been appointed and filed an answer for him, the cause was tried, commissioners were appointed who reported that the land was not susceptible of partition,, the decree was that it be sold, which was done, and the plaintiff in the partition suit became the purchaser; he sold to Hunter, who was an innocent purchaser for value. The suit in. equity was to set aside the judgment and give the plaintiff his share of the land on two - grounds: first, that the decree of sale was procured by fraud on the part of the plaintiff in the partition suit; second, that the plaintiff had not been served with pro*597cess in the partition snit. This snit was begun in 1870. The court said that the record showed not the slightest evidence of fraud on the part of the plaintiff in the partition suit, but that even if fraud had been, proven it “would not in the least affect appellant’s title if he purchased in good faith without actual or constructive notice of the fraud.”

¶27On the point that the process had 'not been served, it does not very clearly appear from the report whether the complaint was that the return was insufficient on its face or untrue. The comments of the court rather indicate that the complaint was that the return was insufficient on its face. After construing the return and holding it sufficient the court said: “It, then, appearing -that appellee was served with process, he must be bound by the officer’s return. It is in rare cases only, that the return of the officer can be contradicted, except in a direct proceeding by suit against the officer for a false return.”

¶28The points that distinguish that case are, first, that except for the charge of fraud, as to which the court said there was not the slightest proof, there was no equity on the face of the bill; second, the rights of an innocent purchaser for value had intervened.

¶29Cully v. Shirk, 131 Ind. 76, was 'a suit in equity to set aside a decree foreclosing a mortgage on the sole ground that the return of the sheriff on the summons wa's not true. The court said: ‘ ‘ There is no claim that the defendants in the action of foreclosure had a meritorious defensé, or that the proceedings were not proper and regular upon their face.”

¶30Tullis v. Brawley, 3 Minn. 277, was an action at law against the sheriff by a purchaser at the sheriff’s sale to recover back money he had paid the sheriff on the ground that he got no title to the things the sheriff soid him. What is there said of the conclusiveness of the sheriff’s return has no application to a case of equity jurisdiction.

¶31*598Bolles v. Bowen, 45 N. H. 124, was also an action at law. The defendant attempted by a plea in abatement to contradict the truth of the sheriff’s return in the very suit. A demurrer to the plea was sustained.

¶32Rhode Island is placed in the list of States that are thought to hold that equity is without jurisdiction in such case, and is so classed because of the ■ decision in Barrows v. Rubber Co., 13 R. I. 48. In that case the plaintiff had bought shares of stock in defendant corporation at sheriff’s sale and brought this suit to compel defendant to disclose the number of shares that the defendant in the execution held and to transfer the same to plaintiff on the books of the corporation. Some question arose as to the sufficiency of the notice or advertisement of the sale, and what the court said in reference to the conclusiveness of the sheriff’s return has reference only to the facts of that case.

¶33The Rhode Island court, however, in a recent case has placed itself in the list of courts which hold that equity has jurisdiction in such case. Dowell v. Gloodwin, 22 R. I. 287, was a suit in equity to enjoin an action on a judgment obtained against the plaintiff on a false return of service of summons. The bill alleged that the return was false, that plaintiff had a meritorious defense to the action, but did not make it because he was ignorant of the existence of the suit, and did not discover that suit had been brought until after the judgment had been rendered and after it'was too late to interpose his defense. It was insisted on demurrer to the bill that the return of the officer was conclusive and previous decisions of the court were cited as sustaining that view, among them being Barrows v. Rubber Company. The court said (l. c. 290): “The eases cited hold that an officer’s return is conclusive and can not be contradicted incidentally by motion or plea. Also, that the return is part of the record, and that parol evidence can not be submitted to contradict the court record; for so long as it remains it is con-*599elusive upon the parties, and in order to change it some appropriate proceeding acting directly upon the record must be instituted. It is to be observed, however, that the rule as thus laid down'in the cases relied on applies to common-law actions; see Pratt v. Jones, 22 Vt. 345; Pettes v. Bank, 17 Vt. 444; and hence the question arises-whether it is also applicable to suits in equity! . . .

¶34To state the question more concisely, can a court of equity ever interfere and grant relief by way of permitting the record of a common-law court to' be impeached as to the officer’s return on the writ, or as to any other part of the record? We think this question must be answered in the affirmative. One of the peculiar provinces of a court of equity is to relieve against willful misrepresentation and fraud. A court of equity is a court of conscience; and whatever, therefore, is unconscionable is odious in its sight. Indeed it is said by Judge Story in his Commentaries that ‘fraud is even more odious than force.’ That a judgment obtained in a court of law by a false and fraudulent writ or by a false and fraudulent return thereon by the officer is so wholly unconscionable as to shock the inherent sense of justice of all right-thinking men, no one will deny. And it would be a reproach to our system of jurisprudence if a court of equity could afford no relief against a judgment so obtained. But that equity does afford a full and adequate remedy against such a wrong, and that the case stated in the bill before ■ us is clearly within the jurisdiction of such a court, is fully shown by the authorities, to some of which we will proceed to refer. ’ ’ My apology for so lengthy a quotation from that case is that that court is referred to in some of the text-books as being on the other side of that question. It should be noticed also that whilst the court uses the words “false and fraudulent” it uses them in that connection as synonymous. There was no suggestion in the bill filed in that case that the plaintiff in the suit at law had colluded with the officer to make *600the false return; the plaintiff’s case in equity was bottomed on the fact that the return was false. When a sheriff makes a false return, he either does so willfully, in which event he commits a fraud, or he does so by accident or mistake, and in either case it falls within the province of equity jurisdiction.

¶35In Stewart v. Stewart, 27 W. Va. 167, the plaintiff' was the wife of one of the defendants; she had obtained a decree for $2,500 alimony against him in Ohio; he-owned land in Hancock county, West Virginia, and was living, so the bill said, in adultery with the other defendant in the adjoining county of Beaver in Pennsylvania ; he had confessed a judgment in favor of his co-defendant in Hancock county, and the object of this suit in equity was to give the plaintiff priority of her judgment of alimony in the Hancock county land over the-confessed judgment in. favor of the alleged paramour. The sheriff’s return was that of personal service on both defendants; the man appeared and filed a demurrer to the bill, the woman did not appear; the demurrer was overruled, no further pleadings, a decree-pro confesso was entered against both defendants,, which was followed in due course by a final decree in the wife’s favor. Some months after the final decree and sale of the land under it, the woman filed a petition in the same case’ alleging that the sheriff’s return of personal service on her was false, that in fact the summons had been served on her at her home in Beaver-county, Pennsylvania, which as she was advised was only constructive service. The court refused her petition holding that the sheriff’s return as to her was conclusive. The woman did not pretend that she did not in fact have notice of .the suit; on the contrary she set up in her petition that the summons had been served on her, but not in Hancock county as the return falsely stated, and that in legal contemplation the service on her was only constructive. That was not an independent suit in equity; it was a proceeding in the original *601suit in which the decree sought to be set aside was rendered, under a statute of that State something like the provision in our Code of Civil Procedure for opening and reviewing judgments rendered by default on constructive.notice. [Sec. 777, et seq., E. S. 1899.] The court in that decision did not discuss the question of equity jurisdiction, but only the question of the common law effect of the.sheriff’s return as between the parties in the same case, and all the cases cited by that court from Georgia, Indiana, Kansas, New York and Wisconsin are only to the same effect; none of them are on the point of equity jurisdiction.

¶36In Goddard v. Harbour, 56 Kan. 744, the plaintiffs sought to set aside a judgment of foreclosure of a mortgage on the sole ground that the summons had not been served on one of the defendants and that, therefore, the court had no jurisdiction; that the sheriff’s return as to that defendant was false. The sole question in that case was, could the sheriff’s return be shown to be false for the purpose of showing that the court which rendered the judgment was without jurisdiction? There was no suggestion that the defendants in the suit to foreclose the mortgage had any defense to it, and no other equitable ground was offered.

¶37In Taylor v. Lewis, 2 J. J. Marsh. 400, decided in 1826, Taylor had recovered a judgment against Lewis, while the latter was a minor, for board* Lewis filed his bill in chancery alleging that the amount had been paid before the suit was brought, that process had never been served upon him, although returned executed, in consequence of which he was prevented from making defense. On the trial the plaintiff offered no evidence to prove that the debt was paid, but rested his case on proof that the return was false; the trial court decreed that the injunction would be granted unless Taylor would consent to a new trial of the lawsuit, which he refused to do. The decree was reversed on appeal, the Supreme Court holding that the return was conclusive. *602The court said that if there had been a showing that the plaintiff in the suit at law had fraudulently combined with the officer to make the false return there would be no doubt but that the chancery court could grant relief, but when the plaintiff acts in good faith and takes his judgment on the false return the judgment can not be disturbed. . •

¶38That case is reported also in 19 Am. Dec. 135, and in an elaborate note by the editor the cases up to that time are reviewed and the doctrine of that case is condemned. It is there said: “The rule stated in the principal case that a judgment can not be impeached in equity as fraudulent and void, when it appears that the officer, without combination with the plaintiff, has returned process as served on the defendant, when in fact the same never was served, can hardly be considered the prevailing rule at the present day. A few decisions are found affirming the same, but most of the modern authorities are opposed thereto.” The law-writer then refers to Walker v. Robbins, 14 How. U. S. 584, and Johnson v. Jones, 2 Neb. 126, both of which are above discussed, and proceeds: “It has never been questioned that one branch of the jurisdiction of courts of equity was to grant relief in cases of fraud, sometimes concurrent with and sometimes exclusive of other courts. [Story, Eq. Juris.,, sec. 184.] It would seem to be one of thT)se self-evident axiomatic propositions that might be safely asserted, without fear of successful contradiction, that no greater fraud can possibly be perpetrated than to deprive a person of his property without giving him an opportunity to be heard in its defense. To do so, is repugnant to our sense of natural justice, opposed to the underlying principles of all free governments, deriving their authority from a written constitution, and is seldom, if ever, sanctioned, except where might, and not right, prevails. Yet, those authorities undoubtedly have that effect, for when it is asked, and that, too, of those marvels of wisdom and *603.guardian-angels of the rights of persons, courts of equity, to relieve against the commission of such an outrage, fraud per se, it might be truthfully said, and to prevent one man through the medium of courts of justice from confiscating the property of another, their answer is, inasmuch as you have a cause of action against the officer for making a false return, we will deny you the relief sought, allow the Constitution to be violated, and your property confiscated. Fortunately, however,, the authorities quoted have not been followed in this country.” The author then proceeds to discuss the cases that hold that equity has jurisdiction in such case.

¶39Thomas v. Ireland, 88 Ky. 581, was a suit in equity to set aside a judgment of foreclosure of a mortgage on the ground that the return of personal service on the plaintiff was false and was so made by collusion between the sheriff and the plaintiff’s husband to conceal from her the fact that her land was in danger of being sold to satisfy the mortgage debt which was his • and not hers. There w.as no suggestion that the plaintiff had- any defense that she could have made in the foreclosure suit, if she had had notice.

¶40The court held that equity could give the plaintiff no relief, citing Taylor v. Lewis, and saying that if the plaintiff in the foreclosure suit had known when he took his decree or judgment that the return was false it would have been a fraud on his part and the judgment would be set aside, but unless he knew it he was an innocent party and the judgment would stand.

¶41Those two Kentucky cases cdme as near sustaining the contention that a court of equity can not grant relief from a judgment obtained on a false return as any that have come under our observation, and yet in neither of those cases was there any effort to show that the parties seeking to set aside the judgments had any defense on the merits, or that there was anything in their cases to appeal to the conscience of the chan*604cellor, except the bare fact of the false returns. Touching the arguments advanced in those opinions that when a plaintiff takes a judgment by default on a false return, he not having procured the false return to be made, and not knowing that it is false when he takes' his judgment, he is an innocent party who has acted in good faith and should not be disturbed — I am inclined to say that its soundness depends on whether he has been put to any disadvantage by having taken his judgment. If to set his judgment aside simply places him where he was before he took it, with no vantage ground lost, he is in no position to excite our anxiety to protect him, and if after he has taken.his judgment, he learns that the return was false and that his adversary was thereby deprived of the opportunity of making a defense to the suit, yet, after such information obtained, he holds on to his judgment and seeks to enforce it, I can not see that hi's conduct is less amenable to the charge of fraud than it would have been if he had discovered the fact before he took his judgment. If there is any difference, from a standpoint of good faith and honesty, between taking a' judgment by default knowing the return to be false, and holding on to it after discovering the fact, I do not appreciate it.

¶42In a later case the Kentucky court .holds that equity has jurisdiction to enjoin a judgment obtained on a false return, and although in the opinion reference is made to a statute of that State, yet the court treats it as a principle of equity and defends it on the broad ground of right and justice. The court said: “But though a fine for misdemeanor may be imposed, just as a judgment for money may be rendered, without the defendant being present, yet it is indispensable to validity of both that the person against whom the- charge is made or recovery is sought have notice of -the proceeding against him, so he may deny and call for proof of the charge or of the legality of claim against him; and it is so plain as to be generally held that a judg*605ment rendered without such notice is, and ought to he, treated as absolutely void; and it is equally plain that the defendant in all cases should have the right to show that a judgment against him, whether rendered under an indictment or in a civil action, was, in' fact, if it be so, rendered without legal notice; and, therefore, while, for obvious reasons, official return of a summons duly executed is presumed to be correct, and consequently sufficient to authorize a trial and judgment by the court, it would be equally against public policy, because unjust and oppressive, to deny the right of a defendant against whom a judgment has been rendered to show that the officer did not, in the mode required by law, actually summon him, and hence the statute authorizes it to be done when either the party benefited by the judgment has fraudulently procured return of service, or the officer has made it by mistake. ” [Bramlett v. McVey, 91 Ky. 151.]

¶43Johnson v. Jones, 2 Neb. 126, was a suit in equity to declare a judgment void on the ground that the sheriff ’s return was false. It was a judgment on a promissory note and there was no suggestion of a meritorious defense; it was simply an appeal to equity to declare the judgment void on the alleged-ground that the return was false. On the trial the evidence for the plaintiff broke down, and he confessed that he was mistaken when he testified that he was absent from the State at the date of the alleged service, which was the basis of his contradiction of the return, and the court said: “The case then stands without proof to contradict the return.” The court then goes on to discuss the subject of the conclusiveness of the officer’s return .and concludes the discussion on that subject thus: “When the law invested the sheriff with authority to serve process and make return thereof, and he returns that he has served the process, his return can not be collaterally assailed. ’ ’

¶44But the Nebraska court in a later decision clearly *606recognizes the jurisdiction of equity to set aside a judgment founded on a false return, when in addition to the falsity of the return the plaintiff shows that he has a meritorious defense. ■

¶45In James v. Howell, 37 Neb. 320, which was a suit in equity to vacate a judgment on the ground that the return was false, the court said: “Whilst there is some conflict, the weight of authority undoubtedly is that a court of equity will not enjoin a judgment at law merely on the ground that the process in the suit in which the judgment was rendered was not served on the defendant, or, in other words, that the return of the officer as to service is, in fact, false. To justify the interposition of a court of equity in such a case it must be further shown that if the relief sought be granted, a different result will be obtained from that already adjudged by the judgment alleged to be void [Colson v. Leitch, 110 Ill. 504, and cases there cited; 3 Pomeroy, Equity Jurisprudence, sec. 154 and cases there cited].” The cause was remanded to be tried' on that theory.

¶46■ In reading these decisions of the various courts one is impressed with the fact that different courts view the subject and discuss it from different standpoints. When courts of equity were first appealed to, to grant relief from judgments wrongfully obtained at law, the jurisdiction was fiercely resisted by the common-law lawyers, who considered it as an assumption of authority over the law courts and an affront to their dignity and authority. But the cry of justice was so loud that it finally prevailed, and the defenders of the law courts were appeased with the assurance that courts of equity did not lay their hands on the courts of law or mutilate or impair their recoids, but, in a proper case, would lay their hands on the person who had obtained the unconscionable judgment and enjoin him from enforcing it. And it was in that form only that the jurisdiction of equity in such cases was manifested in earlier times, and whilst, in latter *607days, the former jealousy between the courts having disappeared, courts of equity are not now so careful to avoid giving offense, and therefore sometimes give their decrees the form of annulling the judgment at law, yet that is a difference in form only, because between a decree perpetually enjoining the enforcement of a judgment and one declaring the judgment set aside and for naught held, .there is no practical difference. Yet we still see in the opinions of some of the courts care to avoid impairing the authority of a eourt of law, and that appears in this Nebraska case in which the only point really decided is, that for the purpose of impeaching the jurisdiction of the law court, equity will not hear parol evidence to contradict the return on the summons on which that jurisdiction depends. But conceding that the law court apparently had jurisdiction, if in a subsequent suit facts ar'e made to appear which render it unconscionable for the judgment to be enforced, which suit the law eourt is unable to hear, courts of equity will listen to the complaint and grant relief.

¶47Maryland is classed as one of the States that hold that equity has no jurisdiction in such cases; this is on the- authority of Gardner v. Jenkins, 14 Md. 58. The sole ground on which the relief in equity was sought in that case was that the plaintiff was a resident of Baltimore county, not Baltimore city, the summons was addressed to the sheriff of Baltimore city who served it on the plaintiff in the county outside of the city, against the plaintiff’s remonstrance, and returned .it as served in the city. The opinion in that case on this point is short, but so clearly states the law that we are tempted to quote it (1. e. 61): “The bill admits that the complainant is indebted to the defendant, but it does not state the amount, nor offer to pay it. The case of Fowler v. Lee, 10 Gill. & Johnson 363, shows, to use its language, that ‘courts of chancery do not lightly interfere with judgments at law. It is only for *608the prevention of fraud, or to relieve from substantial injury or gross injustice, that its high and extraordinary power of interference by injunction is ever resorted to. It is never merely for the correction of informalities or irregularities in legal or judicial proceedings. He who seeks to avail himself of such defects, must prosecute his remedies at law; from a court of equity he can receive no countenance. ’ It may be said of the present complainant, as was said of the one in the case referred to, ‘to obtain relief by injunction against this judgment he should, by'his bill, have offered to do equity, by paying into court the debt which, by his own statement, he had shown himself in honor and in conscience under an obligation to pay.’ ”

¶48Preston v. Kindrick, 94 Va. 760, was a suit in equity to set aside a decree to foreclose a vendor’s lien. The land had been sold under the foreclosure decree, bought in by the plaintiff in the foreclosure suit, and by him sold to one Neff. This was in 1892. In 1895 Mrs. Kindrick filed her bill to set aside the decreé under which the land was sold and to allow her to pay the purchase-money due thereon and for general relief. The ground upon which she based her suit in equity was that she had had no notice of the foreclosure suit or sale, that the return of service on her was false, and that the plaintiff in that suit and Neff to whom the land had been sold, had notice that she was ignorant of the suit and of the proceedings. On the trial Mrs. Kindrick testified that the summons was not served on her, but there was no |)roof taken to sustain the allegations of her bill that she had no actual knowledge of the suit, or of the proceedings thereunder, or that the plaintiff or the purchaser of the land knew that the return was false, or that she had no notice. This was a case in which the rights of a purchaser without notice had intervened. The ease rested alone, so far as the proof went, on the point that the sheriff’s return was ■ not true. The court discussed the question whether an off*609•cer’s return in such ease could be questioned in a court of equity and after stating that there was a diversity •of opinions on the subject concluded that the rule in that class of cases holding that the return could not be questioned was “perhaps the better doctrine.” Then after referring to some eases, the chief of which were Walker v. Robbins, and Knox County v. Harshman, above discussed, concludes as follows: “But, even if it were held that; in .order to obtain relief against the .proceedings complained' of, it was only necessary for Mrs. Kindrick to show that process was not served upon her, and-that she did not have notice of the proceedings before the decrees complained of were entered, and that she has a meritorious defense, she has not made •out her case. Although she alleges in her bill that she did not have actual notice of the suit and proceedings therein until after the decrees complained of were rendered, she has wholly failed to sustain it by proof. ’ ’ ■

¶49The foregoing are all the decisions in our sister States which are thought to hold the view that there is no relief in equity from a judgjnent by default founded •on a false return of service of the summons, which have been referred to in the briefs or which have come under my notice and if I have correctly understood them there is not one of them that denies the jurisdiction of a •court of equity in a case like that which is now at bar ■calling for our judgment. ‡

¶50A study of those cases must bring us to the same •conclusion as that expressed by a learned text-writer already above quoted (Black on Judgments), who after •stating that a court of equity has jurisdiction in such case (vol. 1, sec. 376), says: “Although the general consensus of judicial opinion is as stated in the beginning of this section, the decisions in some of the States hold that equity ought not to restrain a judgment on the mere ground that it was void for want of jurisdiction, since the complainant has an adequate remedy at *610law, by motion or otherwise, in the original cause. Probably the true note of distinction is struck in the-cases which rule that equity will not enjoin the judgment unless it is shown to be inequitable and unjust;, if the party merely relies upon a defect of jurisdiction,, without attempting to show that the merits are with, him also, he must seek his remedy at law. ’ ’

¶51I have felt constrained to go through the foregoing-cases-because they are the only decisions, so far as I have been able to discover, that afford any ground for-questioning the jurisdiction of a court of equity on this, important subject, and if my analysis of them is right they afford no authority to gainsay the principle of equity jurisdiction laid down by this court in its opinion on the first appeal in this case.

¶52If we will now turn to the decisions to the contrary in this country on this subject we will find that the only difference in principle between any of them is, that, some hold that it is the duty of the court of equity to-grant relief from a judgment obtained without notice,, although no showing is made, by allegation in the pleading or by proof, that the party had a meritorious defense, basing their opinions on the ground that to-suffer such a judgment to go into execution is to take one’s property without due process of law, an act in itself shocking to conscience, and in express violation of the Constitution of perhaps every State in the Union, while the others hold that a showing of a meritorious defense is necessary to arouse - a court of equity into action.

¶53They all treat the false return as offensive to the equitable sense of right and justice, whether it was the result of mistake or fraud, and- in nearly all the decisions the courts recognize the doctrine that the sheriff’s return, like the judgment of the court itself, is conclusive on the parties to the record and can not be contradicted in a collateral attack, but like the solemn *611judgment of the court it may be assailed in a direct proceeding in equity, for fraud, accident or mistake.

¶54I will not further strain patience by attempting to review those cases which hold that equity is all-power*ful to grant such relief, but here is a list for- reference for anyone who doubts it: Brooks v. Harrison, 2 Ala. 209; Crafts v. Dexter, 8 Ala. 767 (42 Am. Dec. 666); Stubbs v. Leavitt, 30 Ala. 352; Robinson v. Reid’s Exr., 50 Ala. 69; Dunklin v. Wilson, 64 Ala. 162; Rice v. Tobias, 89 Ala. 214; Ryan v. Boyd, 33 Ark. 778; State v. Hill, 50 Ark. 458; San Juan & St. I. M. & S. Co. v. Finch, 6 Colo. 214; Gregory v. Ford, 14 Cal. 138 (s.c., 73 Am. Dec. 639); Martin v. Parsons, 49 Cal. 94; DuBois v. Clark, 12 Colo. App. 220; Wilson v. Hawthorne, 14 Colo. 530; Jeffery v. Fitch, 46 Conn. 601; Owens v. Ranstead, 22 Ill. 161; Hickey v. Stone, 60 Ill. 458; Weaver v. Poyer, 79 Ill. 417; Willman v. Willman, 57 Ind. 500; Harshey v. Blackmarr, 20 Iowa 161; New-comb v. Dewey, 27 Iowa 381; Stone v. Skerry, 31 Iowa 582; Arnold v. Hawley, 67 Iowa 313; Ins. Co. v. Waterhouse, 78 Iowa 674; Chambers v. Bridge Manufactory, 16 Kan. 270; McNeill v. Edie, 24 Kan. 108; Bramlett v. McVey, 91 Ky. 151; Magin v. Lamb, 43 Minn. 80; Walker v. Gilbert, Freeman Ch. (Miss.) 85; Jones v. Bank, 5 How. (Miss.) 43 (s. c., 35 Am. Dec. 419); Crawford v. Redus, 54 Miss. 700; Sivley v. Summers, 57 Miss. 712; Duncan v. Gerdine, 59 Miss. 550; Hauswirth v. Sullivan, 6 Mont. 203; Wilson v. Shipman, 34 Neb. 573 (s. c., 33 Am. St. 660); Huntington v. Crouter, 33 Ore. 408 (s. c., 72 Am. St. 726); Miller v. Gorman, 38 Pa. St. 309; Dowell v. Goodwin, 22 R. I. 287; Caruthers v. Hartsfield, 3 Yerg. (Tenn.) 366; Estis v. Patton, Id. 382; Bell v. Williams, 1 Head (Tenn.) 229; Ingle v. McCurry, 1 Heisk. (Tenn.)26; Ridgeway v. Bank, 11 Humph. (Tenn.) 525; Cooke v. Burnham, 32 Tex. 129; Smith v. Deweese, 41 Tex. 595; Glass v. Smith, 66 Tex. 548; Johnson v. Coleman, 23 Wis. 452 (s. c., 99 Am. Dec. 193).

¶55*612Now let us see what position this court has heretofore taken on this subject. In numerous cases we have held that the officer’s return is conclusive on the parties •to the record, except in an action against him for a false return. The correctness of those decisions is not questioned. In Phillips v. Evans, 64 Mo. 17, the'court, per Sherwood, J., said: “The return of the officer is conclusive as to the facts therein recited, except in an action for a false return [citing cases]. And the same reasons which would forbid any contradiction of the returns when made, must operate with equal and controlling potency in precluding evidence to show- that a ' proposed amendment is untrue. The action of the court below, therefore, in the.rejection of evidence in the particular mentioned, will he held correct. The foregoing remarks are, however, to he restricted to purely legal proceedings. For the arm of a court of equity is not too short to throttle a fraud, consummated, or contemplated, having for its basis either a return originally false or one to he made so by a proposed amendment, and this is the view taken elsewhere.”

¶56That decision hears on another point in this case and for that reason I will refer to it again.

¶57McClanahan v. West, 100 Mo. 309, is relied on as holding that the truth of the sheriff’s return can not he questioned in a direct suit in equity to set aside a judgment on the alleged ground that the return was false. I do not so understand that case. That was a suit in equity to set aside a decree in partition on the ground that the decree was void on its face for failure . of the record' to show service of process and also on the ground of fraud on the part of the plaintiff in the .partition suit. There was no allegation that the sheriff’s return was false; there was an allegation that the plaintiff, who was a minor nine years old when the partition suit was brought, was not served with a process, hut that was based on the fact that there was nothing on the face of the record to show that she was served *613with process; the decree did not recite that process was served, and the files were lost, so that the summons and the sheriff’s return could not he seen. The decree complained of was rendered in 1854, and the suit to set it aside was begun in 1885, more than thirty years thereafter, and nearly, if not quite, twenty years after the minor became of age. She introduced evidence tending to show that no Avrit had been served on her, but that evidence was not offered to contradict a return, for her theory was that there was no return as to her, but it was to rebut the presumption of due service of process that would arise in the absence of the writ in support of the judgment of a court of general jurisdiction; it was, as bearing on that point, that this court considered the evidence, and in that connection, per Sherwood, J., said: “A domestic judgment, rendered by a court of general jurisdiction, can not be impeached by the parties to it merely because the record is silent as to the acquisition of jurisdiction. Such judgment is equally as conclusive on the parties thereto, whether it recites, or whether it fails to recite, that jurisdiction has been; acquired. ’ ’ The trial court- had allowed the defendant to introduce parol evidence to prove the contents of the lost papers, including the summons and the sheriff’s return, and this court held that whilst the plaintiff’s parol evidence was inadmissible to impeach the decree, the defendant’s parol evidence of the contents of the lost papers was admissible to show “that there was nothing in the lost files at variance with the presumptions incident to, and attendant on, the doings of a court of general jurisdiction.”

¶58Thus it appears that no issue was tendered in the petition as to the truth of the sheriff’s return, and what was said in the opinion as to the admissibility of parol evidence had no reference to such an issue. To quote further from the opinion: “It is charged in the petition that the partition proceedings are void on their face. If this is true, the plaintiffs have stated them*614selves.out of court; for in such case the remedy at law by action of ejectment would be adequate and ample.” The court also refers to the fact that there was a guardian ad litem appointed for the minors who filed an answer for them, and that’the record showed the receipt of the plaintiff after she came of age for her share of the proceeds of the sale in partition.

¶59There is nothing in that case to justify the inference that the learned judge who wrote the opinion had in any degree changed his mind expressed in Phillips v. Evans as to the power of a court of equity to throttle fraud “having for its basis either a return originally false or one to be made so by a proposed amendment.”

¶60Those are the only eases in which this court has spoken on this subject as affecting equity jurisdiction, but there are other cases in which we have spoken with such emphasis that it would be difficult to say that a party against whom a judgment has been rendered without notice in fact cannot at’law, as well as in equity, every where and in any manner, contradict the false return to show that the court which rendered the judgment had no jurisdiction of the person. In Hunt v. Searcy, 167 Mo. 158, those decisions of this court as well as decisions of the Supreme Court of the United States are reviewed by Marshall, J., speaking for the court, and quoting with approval what the Supreme Court of the United States said in reference to that clause of the fourteenth amendment to the Federal Constitution prohibiting a State to deprive one of life, liberty or property without due process of law: ‘ ‘ These prohibitions extend to all acts of the State, whether to its legislative, its executive, or its judicial authorities. .' . . No judgment of a court is due process of law, if rendered without jurisdiction in the court, or without notice to the party,” and applying the law to the case then in hand the learned judge said that the statute which seemed to authorize an inquiry of lunacy *615without notice to the alleged lunatic, was in violation of hoth the State and Federal Constitutions.

¶61The facts of the case at bar do not require us to ■either say or imply that the long established rule that in an action at law as between the parties to the suit and their privies, -the return of the sheriff on the original process is conclusive and can not be contradicted, should be departed from, and I do not so say or imply, but following the same line Of argument we followed in the case last cited, some courts, as will be seen by reference to the cases above cited, have been unable to resist that conclusion. But without departing from the rule and without impairing in any degree the confidence that should be encouraged in the integrity and stability ■of judicial proceedings, we ought to hold that a party against whom a judgment by default has been rendered •on a cause of action against which be had a meritorious defense, which he was unable to interpose because he had no notice of the suit, although the sheriff’s return falsely showed due service of the process on him, may have relief in equity from such judgment upon’ such •equitable terms as will not injure an innocent third party; and with this I leave that subject.

¶62II.

¶63Does the evidence sustain the allegations of the plaintiff’s petition?

¶641. Did she have a meritorious defense? She signed the note with her husband as surety for money which he borrowed — for a debt that was his, not hers— she was then a married woman and the law then was that a married woman could not bind herself by such ■a contract and the note imposed on her no legal obligation. The fact that at the time she signed the note she was a married woman, was a complete bar to a judgment against her in the suit in which the judgment in question was rendered. Was that a meritorious defense? In 20 Am. and Eng. Ency. Law (2 Ed.), 607, *616it is said: “The term ‘merits’ has been defined as meaning the strict legal rights of the parties as distinguished from those mere questions of practice which every court regulates for itself and from all matters which depend upon the discretion or favor of the court;. matters of substance in law, as distinguished from matters of form.” Aiiother harvester of the law puts it thus: “Merits signify the legal rights of the parties as distinguished from questions of practice and discretion.” ' [1 Ency. PI. and Pr., 339.] That which the law itself declares to he a meritorious defense, courts established to'administer justice according to the law have no right to say is not meritorious; the law erects the standard and courts do well if they measure up to it.

¶652. It appears that some time before she brought this suit the plaintiff brought suit against the sheriff for damages occasioned by the false return and that the tribunal to which she then applied for justice found the issues in her favor and awarded her one cent for her compensation. It is now insisted that she made her election of remedies and must abide by her choice.

¶66The doctrine of election of remedies has its origin in the law of estoppel, although to charge a party with the consequences of his election it is not necessary that all the essentials of an estoppel appear. In Bigelow, on Estoppel (5 Ed.), p. 673, it is said: “A party can not in the course of litigation or in dealings in pais occupy inconsistent positions. Upon that rule election is founded; ‘a man shall not be allowed,’ in the language of the Scotch law, ‘to approbate and reprobate. ’ ” The doctrine applies where a party has two remedies based ■on inconsistent theories. If the plaintiff’s personal property has been unlawfully taken he may sue for its possession, or he may waive the tort and elect to recover its value as upon an implied agreement. But if he still claims the property he can not recover its value on an indebitatus assumpsit, and on the other hand if he elects to imply an agreement on the part of the de*617fendant to pay Mm what the goods were worth he can not have the goods. [7 Ency. PI. and Pr. {2 Ed.), 361, et seq.]

¶67The author just cited, in a note to the text at page 363, says: “That the inconsistency of the remedies at the choice of the suitor is the essential condition of every application of the doctrine of election, is the. teaching more or less direct and explicit of every case by which it is illustrated.” And in the text the author in the same connection says: “As regards what have been termed consistent remedies, the suitor may, without let or hindrance from any rule of law, use one or all in a given case. He may select and adopt one as better adapted than the others to work out his purpose, but his choice is not compulsory or final, and if not satisfied with the result of that, he may commence and carry through the prosecution of the other.”

¶68The respondents in the case at bar seem to take the position that the plaintiff had no choice but to sue the sheriff, and then rather inconsistently' they say that having chosen that course she is estopped from recovering her property from those whom she alleges have wrongfully taken it.

¶69There is no inconsistency in the theory of the plaintiff’s suit against the sheriff, and that on which this suit is founded; in both suits, she declares that she has been wronged, and in neither does she waive the wrong and elect to treat the transaction as a transfer of her property.

¶70In the brief of one of the' counsel we are informed that the theory on which the court, which tried the suit against the sheriff, based its judgment of one cent was, that if the return was false the judgment founded on it was void, and, therefore, did not deprive the plaintiff of any of her rights. If that was the theory, whether erroneous or not,- it accounts for the otherwise unaccountable judgment for one cent. We gather from the brief of counsel on the other side that the theory *618was that although the return was false, yet, she was really served in another manner, and had notice, and, therefore, she was not injured. But if the law court shut its door against her on that theory, surely there ought to he some court, under the sun, which would give her a hearing on the question of whether or not .she, in fact, had notice.

¶71Under these circumstances when she turns at last to a court of equity and prays that her property, of which she has, by this means, been deprived, he returned to her, what excuse can a court of equity give for its existence if it can grant her no relief and if it must turn her away telling her that because of her judgment for one cent there is no power in equity to redress her wrong?

¶72I do not think that the plaintiff is estopped by her judgment for one cent against the sheriff from prosecuting her suit in equity to recover her property.

¶733. On the former appeal the cause was remanded to the circuit court with leave to the defendants,- if they should see fit to do so, to amend their answer to tender the issue that the plaintiff was in fact served, though in a different manner from that shown in the return, or that she in fact had notice. After the cause went hack to the circuit court, the former sheriff went into court and filed a motion in the original suit of Judd v. Smoot, for leave to amend his return so as to show that he served the writ by leaving a copy for Mrs. Smoot with a member of her family at her usual place of abode, and the court allowed him to make the amendment. Mrs. Smoot was notified that the motion would he made, and she appeared and resisted it, and appealed from the order allowing the amendment, hut the Kansas City Court of Appeals affirmed the ruling of the circuit court.

¶74It is now insisted that that proceeding is to he taken as conclusive in this equity suit of the question of fact.

¶75*619Section 670, Revised Statutes 1899, authorizes a sheriff, with leave of court, to amend his return “in matters of form, ’ ’ as well after as before judgment. This is frequently necessary to sustain the integrity of the record, for if the return on its face is insufficient to show that the court had jurisdiction, the record would impeach itself. The amendment is made on the motion of the sheriff and at' the discretion of the court.

¶76•The defendant cannot at that stage introduce evidence to contradict the proposed return any more than he could in that case introduce evidence to contradict the original return. If the sheriff who is the responsible officer makes such a showing as will satisfy the court that he ought to be allowed to amend his return the court will allow it, but the return as amended is still the act of the sheriff only, as much so as the original, and is as much beyond contradiction in that proceeding as was the original. The Kansas City Court of Appeals in that case said that in allowing the return to be amended the court did not abuse its discretion. [Judd v. Smoot, 93 Mo. App. 289.]

¶77In Phillips v. Evans, 64 Mo. 17, hereinabove referred to on another point, the defendants in a judgment rendered against them by default moved to quash an execution that had issued on the judgment, one of the reasons assigned being that the service was not sufficient to give the court jurisdiction of the defendants. The original return was that the writ had been left at the usual place of abode of one of the defendants with a member of his family over fifteen years of age. The defect pointed out was that the return omitted to say that the member of the family with whom the return was left was a white person. On the hearing of the motion to quash the execution, the plaintiff asked leave of the court for the sheriff to amend the return by inserting the words ‘ ‘ white person. ’ ’ The defendants objected on the ground that it would aid a false return, and offered evidence to prove that the *620defendant named never liad a place of abode in that county, but'the court refused to hear the evidence and on appeal this court said:- “And the same reasons which would forbid any contradiction of the returns when made, must operate with equal and controlling potency in precluding evidence to show that a proposed amendment is untrue. "The action of the court below, therefore, in the rejection of evidence in the particular mentioned, will be held correct.” That is unquestionábly the law. Therefore, when Mrs. Smoot was before the court objecting to the amendment, she had no right to offer any evidence that would tend to show that the proposed amendment would be false any more than she could in that case have been heard to say that the original return was false, yet that proceeding is now claimed to settle this controversy, and take away from the equity court which had already assumed jurisdiction of the case the right to try the question of fact, did this woman have notice of the suit? The amended return ranks no higher than the original, and if false in fact is not beyond the reach of the chancellor.

¶784. It is also claimed that the purchasers of the plaintiff’s' land at the partition suit are innocent purchasers.

¶79When the case was here on the former appeal we pointed to previous decisions to show that the purchaser at the partition sale took only such title as the parties to the partition suit had. But in addition to that the evidence shows that these purchasers had actual notice of the claim of this plaintiff.

¶80The accuracy of a statement in the opinion in division is challenged, which is to the effect that in the answer which she tried to file in the partition suit, “she endeavored to assert the invalidity of the judgment and sale under execution upon the same grounds she now assails them.” That language was intended to express the legal effect of the answer that it was *621•attempted to file. In the partition suit the petition stated that Jndd “by good and sufficient deeds of conveyance purchased the interest of Ella G. Smoot,” while in the answer she-tried to file she “denied that the plaintiff, or any person for him, ever purchased her interest in said premises by good and sufficient deeds or by any deed whatever.” The attorneys for Judd in the partition suit were his attornej^s in the original suit. They had conducted the sale under the execution and they knew what they meant when they said he had acquired her title “by good and sufficient deeds,” and they knew what she meant when she returned-them her denial in their own words. Her answer was stricken out on Judd’s motion, filed by the same attorneys, on the ground, among others, that she could not litigate her rights in that suit and the judgment therein would not preclude her.

¶815. It is said, however, that her debt to Judd is now paid with the proceeds of her land at the partition sale, and if she is allowed to recover back her land, nobody is left to suffer except the purchasers at the partition sale. But she owed no debt to Judd; it was her husband’s debt, and not hers. Judd could not lawfully have taken her property for it, and if these defendants, chargeable as they are with knowledge that she claimed title to the land, chose to buy it in defiance of her claim, they voluntarily took the risk and there is nothing inequitable in requiring them to restore to the plaintiff her own. But under this point be it said, that a court of equity, whilst not omnipotent, is yet the most ample power in the judiciary to' do' justice between the parties, and so if the chancellor saw in the circumstances of the case anything to justify it, he might in ordering the account of rents and profits make some allowance on that source, he may restore her her property on such terms as good conscience and fair justice demands, but he cannot shut the door of his court in her face and refuse- her prayer altogether.

¶82*6226. The evidence shows that a day or two before the sale of the land under execution on the original judgment Mrs. Smoot, in company with her husband, sought the advice of a lawyer, and the result was that an agreement was mad.e between the lawyer so consulted and the attorneys for Mr. Judd by. which he agreed to give her twelve months after the sale in which to redeem. The attorney stated that the agreement was in writing and he thinks he gave it to the plaintiff’s husband. Just what that agreement was, whether it was supported by any consideration, or was binding on any one, or who signed it, or whether Mrs. Smoot ever saw it, the evidence does not show. It is impossible in the absence of the agreement and with the meagre showing of its contents to pronounce judgment on its legal effect; we must, therefore, be content with the facts we have. The facts are that Mr, Judd bought the land at the sheriff’s sale, waited a year or more, and then brought the partition suit, and resisted the application of Mrs. Smoot to be made a party to that suit, caused her answer to be struck out on his motion on the grounds that her title could not be litigated in .that suit, and: “Because said Ella 0. Smoot has ample remedy, and is fully protected, if any rights she has, which will not be affected by the proceedings in this case. ’ ’ The sheriff sold the land under the partition decree in September, 1894. The present suit was instituted in August, 1895, a little less than one year after the sale in partition. It is now said that she has slept too long on her rights. There is nothing to show that anybody has been misled to his disadvantage by her delay, or that the rights of any third person have intervened. In the meantime she had .the battle with the sheriff on her hands, and after the law courts turned her out with a judgment for one cent damages, she brought this suit. There is nothing in these facts which would justify us in saying that this woman was guilty of laches.

¶83*6237. The last question in the case is, does the evidence sustain the plea that the plaintiff had notice of the suit? This is the question of fact for the trial of which we remanded the cause on the former appeal. The evidence on this question is discussed in the opinion in division and I do not care to here repeat it.

¶84It is now said, however, that when it comes down to the.testimony of the ex-sheriff on the one hand and the plaintiff’s husband on th,e other, the ex-sheriff is entitled to greater credibility because he is, or was, an officer of the law, and the presumption that the officer did his duty must be weighed in his favor, and cases are' cited to sustain that proposition. The cases cited, however, do not refer to the evidence of the "officer whose original return is confessed to be false, and who is seeking ten years afterwards to prove that notice of the suit was given in some other way. Nothing in the opinion in division reflects on the integrity of the officer, but he is considered as possessing the ordinary fallibility of memory that belongs to all of us.

¶85It is also said that deference ought to be paid to the finding of the chancellor who had the witnesses before him and was better able to judge between them. lYe do observe deference towards the finding of a chancellor based on the conflicting testimony of witnesses in his presence; but in this case the finding seems to be based on an erroneous view of the law.

¶86In the brief of the counsel for defendants we are favored with the written opinion of the learned chancellor in deciding the case and from it I gather that whilst he gave due consideration to the oral testimony, yet he gave to the amended return the weight of almost, if not quite, conclusive evidence, saying: “If the evidence is such as to justify the court in permitting the sheriff to amend his return, it would be such as to authorize a finding for the plaintiff.” And the opinion also expresses the view that the proceedings in the *624court which resulted in permitting the ex-sheriff to amend his return made the fact of service res adjudicata.

¶87In that view the learned chancellor failed to notice the difference between the effect to be given the return, as an integral part of the record, in case the judgment should be attached collaterally, and the effect to be given it when the judgment is assailed in a direct proceeding in equity.

¶88If a judgment is rendered on default the sheriff’s return is a vital part' of the record in such case, for it shows on its face either that the court did, or that it did not, have jurisdiction of the person against whom the judgment is rendered. If (as in McClanahan v. West above referred to) the papers are lost and the return cannot be seen, we fall back on the presumption of- regularity in the proceedings of a court of general jurisdiction, and on that presumption the integrity of the judgment is ■ preserved. But if the writ and the return are on file, -the judgment, in a collateral attack on that point, will stand or fall by what the return shows.

¶89Though the judgment by default-should itself recite that the process was served, yet, if the return shows that it was not served, the record impeaches itself and the judgment is open to a collateral attack. But if the return shows due service, then the judgment on its face is valid, and the truth of the return cannot be questioned in a legal proceeding except in a suit for damages against the sheriff. When the validity of the judgment is challenged on the face of its own record, the office of the return is to show that the court did, or that it did not, have jurisdiction of the person of the defendant, and the office of the amendment of the return is the same, and, while that record stands, neither the original nor the amended return can be contradicted by the parties to it.

¶90And since, as was decided in Phillips v. Evans *625above referred to, when the sheriff moves for leave to amend his return, a party to the suit cannot, in opposition to the motion, introduce evidence to show that the return as proposed to be amended would be false, the ruling of the court in allowing the sheriff to make the amendment can not give it the character of res adjudicates. The amendment simply substitutes the amended for the original return. But as the sheriff by his original return could not shut the parties out of a court of equity, neither can he do so by his amended return.

¶91For the reasons above given I think the judgment ought-to be reversed and the cause remanded to the circuit court with directions to enter a decree for the plaintiff, as directed in the opinion in division.

¶92SEPARATE CONCURRING OPINION.

¶93The record in this cause presents a number of questions for. our consideration. However, there is one disclosed which is most vital and overshadows all other propositions involved, and its correct solution ends this controversy.

¶94This proposition may be thus stated: On the ©ne hand it is insisted that the sheriff’s return of process is conclusive upon all the parties to the action, and the only remedy afforded the party injured, as a result of such false return, is against the sheriff and his sureties upon his bond, unless the plaintiff had knowledge of such false return, or in some way. participated in the fraud perpetrated by the officer; in that event, equity will furnish a remedy. On the other hand, it is insisted with equal earnestness that equity will assume jurisdiction and afford a remedy, in all cases where it is made to appear that the party to the action had a meritorious defense, and that the judgment was rendered upon a false ieturn of service of process by the officer; and it is urged that this is the correct rule, even though the plaintiff and his privies were absolutely ignorant *626of the falsity of the return, and in no way participated in the procuring of such return, or the fraud resulting from the making of it.

¶95An able and exhaustive analysis of all the authorities bearing upon this question has been made by two of the learned and esteemed judges of this court, and the views expressed and conclusions reached are so sharply and pointedly in conflict, I trust it will not be deemed inappropriate to briefly give some expression to my views in concurring in the affirmance of the judgment in this cause. While the correctness or incorrectness of the analysis of the decisions of the courts in other jurisdictions may materially aid us in reaching a correct conclusion, it by no means solves the proposition confronting us; nor would my concurrence with either of the learned judges in the analysis of the cases be a solution of the legal problem. We are still confronted with a wide divergence ■ in the views of learned judges and courts of high standing; hence, we must, at last, find a solution of this important question after careful and full consideration by adhering to the safer and wiser rule, and one that would best ' comport with equity and good conscience, and from which the least injustice would result.

¶96In this State, in law cases, from a very early period in the history of this court, it was ruled that the return of service of process by the sheriff was conclusive upon the parties to the action, and it is somewhat significant -that in nearly all the cases, from Hallowell v. Page, 24 Mo. 590, to Feurt v. Caster, 174 Mo. 297, it was expressly pointed out that the remedy of the party injured by reason of the false return, was against the sheriff upon his bond. With the exception of McClanahan v. West, 100 Mo. 309, the case at bar is the only one that has ever reached this court involving the proposition now before us; it might be said that the uniform expression of this court, indicating the remedy against the sheriff upon his bqnd, was construed by the *627profession as the only one, hence the absence from this conrt of snits in equity involving the proposition might be to some extent accounted for. However, we will say that the absence from this court during its entire history of equity suits involving the question now being discussed, would not justify the conclusion that the profession of this State recognized the correctness of the doctrine that the sheriff’s return in the original case was conclusive upon the parties in an action in equity to set aside a judgment for the reason that the return was false. This is merely referred to as a part of the history of litigation of this character.

¶97In McClanahan v. West, supra, while it was not expressly alleged in the petition that the return of process upon one of the defendants in the original case was false, it was alleged that the decree in.the original case was fraudulent and void, and there is no escaping the conclusion that plaintiffs, upon the allegations in the petition, offered parol evidence to show that Nancy, one of the defendants in the original case, was not served with process, and it was ruled that this testimony was inadmissible. There was no objection urged to this testimony that there was no allegation in the petition upon which to predicate it, or that the allegation that “the decree was fraudulent and void” was too general to admit of the testimony; but doubtless it was offered under such general allegation, and the announcement of the conclusions by the learned judge indicates very clearly the ground upon which he based his reasons for the ruling. Here is what was said in that case: “But it is unnecessary to rule the point now, for the obvious reason that there is no tendency in the testimony adduced by plaintiffs to show fraud in the proceeding or concoction of the judgment, nor of any connection of the defendants therewith. This being the case, parol testimony was wholly out of place to show that plaintiff Nancy had not been served with pro*628cess in the partition suit. And this is true notwithstanding that'the judgment in that suit is silent as to the acquisition of jurisdiction by service" of process upon her. A domestic judgment, rendered by a court of general jurisdiction, cannot be impeached by the parties to it merely because the record is silent as to the acquisition of jurisdiction. Such judgment is equally as conclusive on the parties thereto, whether it recites, or whether it fails to recite, that jurisdiction has been acquired.” [L. c. 320.]

¶98It is apparent from that case that the parties were proceeding on the theory that they could show that Nancy was not served with process, for the reason that the record was silent upon the subject of acquiring jurisdiction of the person, by due service of process. But that by no means tends to lessen the force of the rule announced; it but emphasizes it, for it was there held that the judgment being one rendered by a court of general jurisdiction, even in the absence of any evidence of due service of process, other than that imported by the judgment itself, was equally conclusive on the parties thereto, whether it recites or fails to recite that jurisdiction has been acquired.

¶99It thus follows that this court has spoken upon the subject now under consideration. It is apparent that the doctrine announced in that case cannot stand, if we now adopt the rule that the sheriff’s return of service of process in the original case is not conclusive in an action in equity, to set aside the judgment upon the ground of the falsity of such return.

¶100It must be conceded that to limit the remedy of a party to his or her action against the sheriff upon his bond, may, in some instances, entail hardship. It may be said that it is grossly inequitable, where the sheriff and his bondsmen are insolvent and unable to respond in damages for injuries resulting from a false return, to deny the remedy in equity; but would it not be more so to adopt a rule which permitted a recovery for the *629perpetration of a fraud in the nature of a false return, from a party who not only did not in any manner participate in the fraud, hut who. was absolutely ignorant of the falsity of the return? Officers authorized to execute process are required to execute bonds for the faithful performance of their duties. Where they make false returns the parties injured have a remedy. If the sheriff or his bondsmen are insolvent and unable to respond in damages, the hardship is not the result of the failure of the law to provide a remedy, or the application of the doctrine that the return of the officer is conclusive.

¶101Where the officer makes a false return and the party plaintiff has knowledge of it, or in any way participates in the perpetration of the fraud, courts of equity will assume jurisdiction and afford relief, for the reason that that would be deemed fraud in the concoction of the judgment.- On the other hand, if an officer makes a false return and the plaintiff does not participate in any way in such fraud, and is ignorant of the falsity of the return, then, in my opinion the safer rule Is, that the return of the officer should be treated as conclusive, not only in law eases, bnt as well in proceedings in equity to set aside a judgment on the ground of such false' return. The parties seeking such relief in courts of equity should not be permitted to contradict the return of the officer in the original case; but should be required to seek their remedy against the sheriff and those who stand for his official conduct, his sureties.

¶102That the authorities are'conflicting upon this proposition, there can be no dispute; that was doubtless ascertained by Wagner, J., in Stewart v. Stringer, 41 Mo. l. c. 404, where he says: “The courts of some of the States have held that a sheriff’s return is merely prima facie evidence of the facts therein stated; but the law is firmly' settled in this State, that a defendant cannot controvert the truth of the sheriff’s return. If *630the return of a sheriff to a process is regular on its face, it is conclusive upon, the parties to the suit, and the remedy for the party injured is an action against the sheriff for a false return. ’ ’

¶103The unvarying rule of the common law. is that the return of the officer is conclusive and has been followed by many courts of this country of high standing. I shall not undertake to discuss or point out upon which side of this proposition the weight of' authority rests. I must be content with giving expression to my conclusions, which are predicated upon that line of authorities which, in my humble judgment, furnishes the most satisfactory reason for the adoption of the rule.

¶104To adopt the rule that courts of equity, upon the showing of a meritorious defense and a false return of service of process by the officer, would set aside judgments and sales of property made under them, •notwithstanding all the parties to the judgment are innocent of participating in any fraud in procuring it, would materially lessen the value and force of such judgments, and the purchaser of property under such judgments, regular though they may appear in every detail, would be left in doubt as to the nature of his title, which uncertainty would continue to surround his title until relieved by the expiration of the statutory period of limitation in which the judgment debtor could institute his suit in equity to annul the judgment and set aside the sale made under it. Many land titles are based upon execution and partition sales in pursuance of judgments and decrees by default, and the injurious effects of the adoption of the rule indicated upon sales of that character are apparent. It would materially lessen the value of property, interfering with its ready sale, and introduce an entirely new feature for the consideration of title examiners, who are so often applied to for guaranty of titles.

¶105While, I repeat, isolated instances of hardship and injustice may result from the adherence to the doctrine *631that the sheriff’s return, regular upon its face, is conclusive upon the parties to the action, both in law cases and in equity, where it is sought to annul proceedings upon the sole ground of a meritorious defense and a false return; I am convinced that far more injurious results would follow the thrust at the integrity of judgments of courts of law by the adoption of the opposite rule.

¶106Upon the other propositions involved in this controversy, it will suffice to say that from the disclosures of the. record in this cause, the plaintiff had her day in court in the suit against the sheriff for making a false return. She pursued the remedy provided by law, and that must be treated as a full satisfaction and compensation for the damages sustained by reason of the false return. The fact that she was only awarded nominal damages cannot lessen the force or correctness of the legal proposition, and any injustice done her in that case, if any was done, should not be attributed to the failure of the law to furnish a remedy for the injuries resulting from such false return.

¶107The judgment in this case, upon the facts disclosed by the record before us,.is in harmony with equity and good conscience, and without expressing an opinion upon the correctness or incorrectness of the analysis of the authorities-bearing upon this subject, made, by each of the learned judges, I concur in the conclusions of Marshall, J., upon all the propositions involved in this cause, and the judgment of the trial court should be affirmed.